RAM SARAN DAS Vs. MALLU

JUDGEMENT

(1.) This is an application am revision by a plaintiff against an order of a Munsif restoring a suit which was dismissed, ex parte. The defendants made an affidavit alleging various grounds, but the Munsif has merely recorded: The defendants counsel had then stated that he had no instructions from his client. Ground is consequently sufficient.

(2.) The Munsif has not recorded any reason why the defendants counsel had no instructions or why the defendants were absent. Under Order 9, Rule 13, it is necessary that the Munsif should find that defendants were prevented by any sufficient cause from appearing when the suit was called on for hearing.

(3.) Another point was taken in ground No. 1 of the revision that the Court below had no jurisdiction to set aside an ex parte decree and the remedy open to the defendants was only an appeal against the decree as it stood. The defendants entered an appearance in the suit and filed a written statement. Therefore the case did not come prima facie under Order 9, Rule 6. The date in question on which defendants were lucid to have failed to appear was the date which was fixed for final hearing in the suit. It was therefore a date which came under Order 17, Rule 2 as a date to which the hearing of the suit had been adjourned. It is shown from the order sheet that on I that date the pleader for defendants asked for an adjournment which was refused and he then stated that he had no instructions. In the Explanation to Rule 2, Order 17 it is stated that no party shall be deemed to have failed to appear if he is cither present or is represented in Court by an agent or pleader, though engaged only for the purpose of making application. The pleader for defendants was engaged in making an application and therefore I must hold that the defendants did appear on the date in question. All that happened was that they did not produce their evidence and the case was heard and decided. No application by way of restoration under Order 17, Rule 2, which applies the provisions of Order 9 therefore lies as the defendants must be held to have actually appeared. The order therefore of the lower Court allowing restoration must be set aside. The only remedy which the defendants had against the decree was by way of appeal.